Regulation

REGULATION (EC) No 261/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof 11 February 2004

establishing common rules on compensation and assistance to passengers in the event of deniedboarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THEEUROPEAN UNION,

Having regard to the Treaty establishing the EuropeanCommunity, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic andSocial Committee ,

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article251 of the Treaty, in the light of the joint text approved bythe Conciliation Committee on 1 December 2003,

Whereas:(1) Action by the Community in the field of air transportshould aim, among other things, at ensuring a high levelof protection for passengers. Moreover, full accountshould be taken of the requirements of consumer protectionin general.

(2) Denied boarding and cancellation or long delay of flightscause serious trouble and inconvenience to passengers.

(3) While Council Regulation (EEC) No 295/91 of 4February 1991 establishing common rules for a deniedboarding compensation system in scheduled air transport(4) created basic protection for passengers, thenumber of passengers denied boarding against their willremains too high, as does that affected by cancellationswithout prior warning and that affected by long delays.

(4) The Community should therefore raise the standards ofprotection set by that Regulation both to strengthen therights of passengers and to ensure that air carriersoperate under harmonised conditions in a liberalisedmarket.

(5) Since the distinction between scheduled and non-scheduledair services is weakening, such protection shouldapply to passengers not only on scheduled but also onnon-scheduled flights, including those forming part ofpackage tours.

(6) The protection accorded to passengers departing froman airport located in a Member State should be extendedto those leaving an airport located in a third country forone situated in a Member State, when a Communitycarrier operates the flight.

(7) In order to ensure the effective application of this Regulation,the obligations that it creates should rest with theoperating air carrier who performs or intends toperform a flight, whether with owned aircraft, under dryor wet lease, or on any other basis.

(8) This Regulation should not restrict the rights of theoperating air carrier to seek compensation from anyperson, including third parties, in accordance with thelaw applicable.

(9) The number of passengers denied boarding against theirwill should be reduced by requiring air carriers to callfor volunteers to surrender their reservations, inexchange for benefits, instead of denying passengersboarding, and by fully compensating those finally deniedboarding.

(10) Passengers denied boarding against their will should beable either to cancel their flights, with reimbursement oftheir tickets, or to continue them under satisfactoryconditions, and should be adequately cared for whileawaiting a later flight.

(11) Volunteers should also be able to cancel their flights,with reimbursement of their tickets, or continue themunder satisfactory conditions, since they face difficultiesof travel similar to those experienced by passengersdenied boarding against their will.

(12) The trouble and inconvenience to passengers caused bycancellation of flights should also be reduced. Thisshould be achieved by inducing carriers to informpassengers of cancellations before the scheduled time ofdeparture and in addition to offer them reasonable rerouting,so that the passengers can make other arrangements.Air carriers should compensate passengers if theyfail to do this, except when the cancellation occurs inextraordinary circumstances which could not have beenavoided even if all reasonable measures had been taken.

(13) Passengers whose flights are cancelled should be ableeither to obtain reimbursement of their tickets or toobtain re-routing under satisfactory conditions, andshould be adequately cared for while awaiting a laterflight.

(14) As under the Montreal Convention, obligations on operatingair carriers should be limited or excluded in caseswhere an event has been caused by extraordinarycircumstances which could not have been avoided evenif all reasonable measures had been taken. Such circumstancesmay, in particular, occur in cases of politicalinstability, meteorological conditions incompatible withthe operation of the flight concerned, security risks,unexpected flight safety shortcomings and strikes thataffect the operation of an operating air carrier.

(15) Extraordinary circumstances should be deemed to existwhere the impact of an air traffic management decisionin relation to a particular aircraft on a particular daygives rise to a long delay, an overnight delay, or thecancellation of one or more flights by that aircraft, eventhough all reasonable measures had been taken by theair carrier concerned to avoid the delays or cancellations.

(16) In cases where a package tour is cancelled for reasonsother than the flight being cancelled, this Regulationshould not apply.

(17) Passengers whose flights are delayed for a specified timeshould be adequately cared for and should be able tocancel their flights with reimbursement of their ticketsor to continue them under satisfactory conditions.

(18) Care for passengers awaiting an alternative or a delayedflight may be limited or declined if the provision of thecare would itself cause further delay.

(19) Operating air carriers should meet the special needs ofpersons with reduced mobility and any persons accompanyingthem.

(20) Passengers should be fully informed of their rights in theevent of denied boarding and of cancellation or longdelay of flights, so that they can effectively exercise theirrights.

(21) Member States should lay down rules on sanctionsapplicable to infringements of the provisions of thisRegulation and ensure that these sanctions are applied.The sanctions should be effective, proportionate anddissuasive.

(22) Member States should ensure and supervise generalcompliance by their air carriers with this Regulation anddesignate an appropriate body to carry out such enforcementtasks. The supervision should not affect the rightsof passengers and air carriers to seek legal redress fromcourts under procedures of national law.

(23) The Commission should analyse the application of thisRegulation and should assess in particular the opportunityof extending its scope to all passengers having acontract with a tour operator or with a Communitycarrier, when departing from a third country airport toan airport in a Member State.

(24) Arrangements for greater cooperation over the use ofGibraltar airport were agreed in London on 2 December1987 by the Kingdom of Spain and the United Kingdomin a joint declaration by the Ministers of Foreign Affairsof the two countries. Such arrangements have yet toenter into operation.

(25) Regulation (EEC) No 295/91 should accordingly berepealed,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject

1. This Regulation establishes, under the conditions specifiedherein, minimum rights for passengers when:(a) they are denied boarding against their will;(b) their flight is cancelled;(c) their flight is delayed.

2. Application of this Regulation to Gibraltar airport isunderstood to be without prejudice to the respective legal positionsof the Kingdom of Spain and the United Kingdom withregard to the dispute over sovereignty over the territory inwhich the airport is situated.

3. Application of this Regulation to Gibraltar airport shallbe suspended until the arrangements in the Joint Declarationmade by the Foreign Ministers of the Kingdom of Spain andthe United Kingdom on 2 December 1987 enter into operation.The Governments of Spain and the United Kingdom willinform the Council of such date of entry into operation.

Article 2

Definitions

For the purposes of this Regulation:(a) ‘air carrier’ means an air transport undertaking with a validoperating licence;

(b) ‘operating air carrier’ means an air carrier that performs orintends to perform a flight under a contract with apassenger or on behalf of another person, legal or natural,having a contract with that passenger;

(c) ‘Community carrier’ means an air carrier with a valid operatinglicence granted by a Member State in accordance withthe provisions of Council Regulation (EEC) No 2407/92 of23 July 1992 on licensing of air carriers ;

(d) ‘tour operator’ means, with the exception of an air carrier,an organiser within the meaning of Article 2, point 2, ofCouncil Directive 90/314/EEC of 13 June 1990 on packagetravel, package holidays and package tours ;

(g) ‘reservation’ means the fact that the passenger has a ticket,or other proof, which indicates that the reservation hasbeen accepted and registered by the air carrier or touroperator;

(h) ‘final destination’ means the destination on the ticketpresented at the check-in counter or, in the case of directlyconnecting flights, the destination of the last flight; alternativeconnecting flights available shall not be taken intoaccount if the original planned arrival time is respected;

(i) ‘person with reduced mobility’ means any person whosemobility is reduced when using transport because of anyphysical disability (sensory or locomotory, permanent ortemporary), intellectual impairment, age or any other causeof disability, and whose situation needs special attentionand adaptation to the person's needs of the services madeavailable to all passengers;

(j) ‘denied boarding’ means a refusal to carry passengers on aflight, although they have presented themselves forboarding under the conditions laid down in Article 3(2),except where there are reasonable grounds to deny themboarding, such as reasons of health, safety or security, orinadequate travel documentation;

(k) ‘volunteer’ means a person who has presented himself forboarding under the conditions laid down in Article 3(2)and responds positively to the air carrier's call for passengersprepared to surrender their reservation in exchange forbenefits.

(l) ‘cancellation’ means the non-operation of a flight whichwas previously planned and on which at least one placewas reserved.

Article 3

Scope

1. This Regulation shall apply:(a) to passengers departing from an airport located in the territoryof a Member State to which the Treaty applies;(b) to passengers departing from an airport located in a thirdcountry to an airport situated in the territory of a MemberState to which the Treaty applies, unless they receivedbenefits or compensation and were given assistance in thatthird country, if the operating air carrier of the flightconcerned is a Community carrier.

2. Paragraph 1 shall apply on the condition that passengers:

(a) have a confirmed reservation on the flight concerned and,except in the case of cancellation referred to in Article 5,present themselves for check-in,— as stipulated and at the time indicated in advance andin writing (including by electronic means) by the aircarrier, the tour operator or an authorised travel agent,or, if no time is indicated,— not later than 45 minutes before the published departuretime; or

(b) have been transferred by an air carrier or tour operatorfrom the flight for which they held a reservation to anotherflight, irrespective of the reason.

3. This Regulation shall not apply to passengers travellingfree of charge or at a reduced fare not available directly orindirectly to the public. However, it shall apply to passengershaving tickets issued under a frequent flyer programme orother commercial programme by an air carrier or touroperator.

5. This Regulation shall apply to any operating air carrierproviding transport to passengers covered by paragraphs 1 and2. Where an operating air carrier which has no contract withthe passenger performs obligations under this Regulation, itshall be regarded as doing so on behalf of the person having acontract with that passenger.

6. This Regulation shall not affect the rights of passengersunder Directive 90/314/EEC. This Regulation shall not apply incases where a package tour is cancelled for reasons other thancancellation of the flight.

Article 4

Denied boarding

1. When an operating air carrier reasonably expects to denyboarding on a flight, it shall first call for volunteers tosurrender their reservations in exchange for benefits underconditions to be agreed between the passenger concerned andthe operating air carrier. Volunteers shall be assisted in accordancewith Article 8, such assistance being additional to thebenefits mentioned in this paragraph.

2. If an insufficient number of volunteers comes forward toallow the remaining passengers with reservations to board theflight, the operating air carrier may then deny boarding topassengers against their will.

3. If boarding is denied to passengers against their will, theoperating air carrier shall immediately compensate them inaccordance with Article 7 and assist them in accordance withArticles 8 and 9.

Article 5

Cancellation

1. In case of cancellation of a flight, the passengersconcerned shall:

(a) be offered assistance by the operating air carrier in accordancewith Article 8; and

(b) be offered assistance by the operating air carrier in accordancewith Article 9(1)(a) and 9(2), as well as, in event of reroutingwhen the reasonably expected time of departure ofthe new flight is at least the day after the departure as itwas planned for the cancelled flight, the assistance specifiedin Article 9(1)(b) and 9(1)(c); and

(c) have the right to compensation by the operating air carrierin accordance with Article 7, unless:

(i) they are informed of the cancellation at least twoweeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between twoweeks and seven days before the scheduled time ofdeparture and are offered re-routing, allowing them todepart no more than two hours before the scheduledtime of departure and to reach their final destinationless than four hours after the scheduled time of arrival;or

(iii) they are informed of the cancellation less than sevendays before the scheduled time of departure and areoffered re-routing, allowing them to depart no morethan one hour before the scheduled time of departureand to reach their final destination less than two hoursafter the scheduled time of arrival.

2. When passengers are informed of the cancellation, anexplanation shall be given concerning possible alternative transport.

3. An operating air carrier shall not be obliged to paycompensation in accordance with Article 7, if it can prove thatthe cancellation is caused by extraordinary circumstanceswhich could not have been avoided even if all reasonablemeasures had been taken.

4. The burden of proof concerning the questions as towhether and when the passenger has been informed of thecancellation of the flight shall rest with the operating aircarrier.

Article 6

Delay

1. When an operating air carrier reasonably expects a flightto be delayed beyond its scheduled time of departure:

(a) for two hours or more in the case of flights of 1 500 kilometresor less; or

(b) for three hours or more in the case of all intra-Communityflights of more than 1 500 kilometres and of all otherflights between 1 500 and 3 500 kilometres; or

(c) for four hours or more in the case of all flights not fallingunder (a) or (b),passengers shall be offered by the operating air carrier:

(i) the assistance specified in Article 9(1)(a) and 9(2); and

(ii) when the reasonably expected time of departure is at leastthe day after the time of departure previously announced,the assistance specified in Article 9(1)(b) and 9(1)(c); and

(iii) when the delay is at least five hours, the assistance specifiedin Article 8(1)(a).

2. In any event, the assistance shall be offered within thetime limits set out above with respect to each distance bracket.

Article 7

Right to compensation

1. Where reference is made to this Article, passengers shallreceive compensation amounting to:

(a) EUR 250 for all flights of 1 500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than1 500 kilometres, and for all other flights between 1 500and 3 500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).In determining the distance, the basis shall be the last destinationat which the denial of boarding or cancellation will delaythe passenger's arrival after the scheduled time.

2. When passengers are offered re-routing to their finaldestination on an alternative flight pursuant to Article 8, thearrival time of which does not exceed the scheduled arrivaltime of the flight originally booked

(a) by two hours, in respect of all flights of 1 500 kilometresor less; or

(b) by three hours, in respect of all intra-Community flights ofmore than 1 500 kilometres and for all other flightsbetween 1 500 and 3 500 kilometres; or

(c) by four hours, in respect of all flights not falling under (a)or (b),the operating air carrier may reduce the compensationprovided for in paragraph 1 by 50 %.

3. The compensation referred to in paragraph 1 shall bepaid in cash, by electronic bank transfer, bank orders or bankcheques or, with the signed agreement of the passenger, intravel vouchers and/or other services.

4. The distances given in paragraphs 1 and 2 shall bemeasured by the great circle route method.

Article 8

Right to reimbursement or re-routing

1. Where reference is made to this Article, passengers shallbe offered the choice between:

(a) — reimbursement within seven days, by the meansprovided for in Article 7(3), of the full cost of the ticketat the price at which it was bought, for the part orparts of the journey not made, and for the part or partsalready made if the flight is no longer serving anypurpose in relation to the passenger's original travelplan, together with, when relevant,— a return flight to the first point of departure, at theearliest opportunity;

(b) re-routing, under comparable transport conditions, to theirfinal destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to theirfinal destination at a later date at the passenger's convenience,subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whoseflights form part of a package, except for the right to reimbursementwhere such right arises under Directive 90/314/EEC.

3. When, in the case where a town, city or region is servedby several airports, an operating air carrier offers a passenger aflight to an airport alternative to that for which the bookingwas made, the operating air carrier shall bear the cost of transferringthe passenger from that alternative airport either to thatfor which the booking was made, or to another close-by destinationagreed with the passenger.

Article 9

Right to care

1. Where reference is made to this Article, passengers shallbe offered free of charge:

(a) meals and refreshments in a reasonable relation to thewaiting time;

(b) hotel accommodation in cases— where a stay of one or more nights becomes necessary,or— where a stay additional to that intended by thepassenger becomes necessary;

(c) transport between the airport and place of accommodation(hotel or other).

3. In applying this Article, the operating air carrier shall payparticular attention to the needs of persons with reduced mobilityand any persons accompanying them, as well as to theneeds of unaccompanied children.

Article 10

Upgrading and downgrading

1. If an operating air carrier places a passenger in a classhigher than that for which the ticket was purchased, it may notrequest any supplementary payment.

2. If an operating air carrier places a passenger in a classlower than that for which the ticket was purchased, it shallwithin seven days, by the means provided for in Article 7(3),reimburse

(a) 30 % of the price of the ticket for all flights of 1 500 kilometresor less, or

(b) 50 % of the price of the ticket for all intra-Communityflights of more than 1 500 kilometres, except flightsbetween the European territory of the Member States andthe French overseas departments, and for all other flightsbetween 1 500 and 3 500 kilometres, or

(c) 75 % of the price of the ticket for all flights not fallingunder (a) or (b), including flights between the Europeanterritory of the Member States and the French overseasdepartments.

Article 11

Persons with reduced mobility or special needs

1. Operating air carriers shall give priority to carryingpersons with reduced mobility and any persons or certifiedservice dogs accompanying them, as well as unaccompaniedchildren.

2. In cases of denied boarding, cancellation and delays ofany length, persons with reduced mobility and any personsaccompanying them, as well as unaccompanied children, shallhave the right to care in accordance with Article 9 as soon aspossible.

Article 12

Further compensation

1. This Regulation shall apply without prejudice to a passenger'srights to further compensation. The compensation grantedunder this Regulation may be deducted from such compensation.

2. Without prejudice to relevant principles and rules ofnational law, including case-law, paragraph 1 shall not apply topassengers who have voluntarily surrendered a reservationunder Article 4(1).

Article 13

Right of redress

In cases where an operating air carrier pays compensation ormeets the other obligations incumbent on it under this Regulation,no provision of this Regulation may be interpreted asrestricting its right to seek compensation from any person,including third parties, in accordance with the law applicable.In particular, this Regulation shall in no way restrict the operatingair carrier's right to seek reimbursement from a touroperator or another person with whom the operating aircarrier has a contract. Similarly, no provision of this Regulationmay be interpreted as restricting the right of a tour operator ora third party, other than a passenger, with whom an operatingair carrier has a contract, to seek reimbursement or compensationfrom the operating air carrier in accordance with applicablerelevant laws.

Article 14

Obligation to inform passengers of their rights

1. The operating air carrier shall ensure that at check-in aclearly legible notice containing the following text is displayedin a manner clearly visible to passengers: ‘If you are deniedboarding or if your flight is cancelled or delayed for at leasttwo hours, ask at the check-in counter or boarding gate for thetext stating your rights, particularly with regard to compensationand assistance’.

2. An operating air carrier denying boarding or cancelling aflight shall provide each passenger affected with a writtennotice setting out the rules for compensation and assistance inline with this Regulation. It shall also provide each passengeraffected by a delay of at least two hours with an equivalentnotice. The contact details of the national designated bodyreferred to in Article 16 shall also be given to the passenger inwritten form.

3. In respect of blind and visually impaired persons, theprovisions of this Article shall be applied using appropriatealternative means.

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulationmay not be limited or waived, notably by a derogationor restrictive clause in the contract of carriage.

2. If, nevertheless, such a derogation or restrictive clause isapplied in respect of a passenger, or if the passenger is notcorrectly informed of his rights and for that reason hasaccepted compensation which is inferior to that provided for inthis Regulation, the passenger shall still be entitled to take thenecessary proceedings before the competent courts or bodies inorder to obtain additional compensation.

Article 16

Infringements

1. Each Member State shall designate a body responsible forthe enforcement of this Regulation as regards flights fromairports situated on its territory and flights from a thirdcountry to such airports. Where appropriate, this body shalltake the measures necessary to ensure that the rights of passengersare respected. The Member States shall inform theCommission of the body that has been designated in accordancewith this paragraph.

2. Without prejudice to Article 12, each passenger maycomplain to any body designated under paragraph 1, or to anyother competent body designated by a Member State, about analleged infringement of this Regulation at any airport situatedon the territory of a Member State or concerning any flightfrom a third country to an airport situated on that territory.

3. The sanctions laid down by Member States for infringementsof this Regulation shall be effective, proportionate anddissuasive.

Article 17

Report

The Commission shall report to the European Parliament andthe Council by 1 January 2007 on the operation and theresults of this Regulation, in particular regarding:— the incidence of denied boarding and of cancellation offlights,— the possible extension of the scope of this Regulation topassengers having a contract with a Community carrier orholding a flight reservation which forms part of a ‘packagetour’ to which Directive 90/314/EEC applies and whodepart from a third-country airport to an airport in aMember State, on flights not operated by Community aircarriers,— the possible revision of the amounts of compensationreferred to in Article 7(1).The report shall be accompanied where necessary by legislativeproposals.

Article 18

Repeal

Regulation (EEC) No 295/91 shall be repealed.

Article 19

Entry into force

This Regulation shall enter into force on 17 February 2005.

This Regulation shall be binding in its entirety and directly applicable in all Member States.